A Bill of Rights, the Parliament and the Courts

John Howard has weighed into the Bill of Rights discussion in the Menzies Lecture reported in the SMH (and the full text provided by The Oz).

It is a most worrying speech because in it Howard repeats the conservative adage that all power should be vested in the Parliament saying;

Our parliamentary system has many flaws but ultimately it sets the tone of national debate and ought to be the ultimate decision maker. It is the identifiable and collective representation of public opinion.

In this speech Howard is building on his lecture on the media, and he repeats here his view of the underpinnings of our democracy;

The three great guarantees of Australian democracy are a robust parliamentary system, an independent and incorruptible judiciary and a free and sceptical press.

Presumably this means he is going to follow-up some time with a third speech on the "incoruptible judiciary". It is hard, however, to reconcile that view with the content of his speech. His speech mostly concerns the wisdom or otherwise of handing important decisions to unelected officials rather than to elected representatives, by which he means Ministers.

It is interesting that he doesn't draw the distinction that is drawn in republics between the separate roles of the legislature and the executive, that is really because that distinction has ceased to exist in Australia since the formation of the first Liberal Party under Deakin. Nowdays the parliament operates as little more than an electoral college to choose the "head of government" as Howard liked to style himself.

What is even more interesting is how seldom discussion refers to the written constitution as the greatest protection of all of the democratic state, and a constitution that in our case can only be amended by all the people in a national plebicite (with some interesting rules on majorities).

In his railing he misses the point that the idea of the Bill of Rights is not to empower just "any old" unelected officials - but the third of his guarantees being the judiciary. He called upon the US experience of 17 Chief Justices versus 44 Presidents and the number of very significant decisions that have been made by these courts. This argument is mostly spurious because what he is describing here is a conflict between the constitution and the executive and legislature, not between judges and the government. Should we conclude that there is a bigger conflict here, as we have had only one constitution but 26 PM's"?

More worrying was Howard's reference to an argument by Menzies that the great protection for Australians was "the common law". Howard seems to miss the obvious contradictio here - the common law is entirely judge made law, the kind of law he seems to loathe. How can judge made law not informed by legislation be superior to judge made law that is so informed (by a Bill of Rights).

In the other corner we have a former Chief Justice of the High Court in Sir Anthony Mason advocating for a Bill of Rights. It really is interesting because as a judge Mason points out that a Bill of Rights is mostly opposed by those in authority using the line that they in authority should be trusted and answerable to the people. Howard himself still waxes on about "the elites" and the idea that the elites want to embed some principles outside the remit of the ability of the common man to influence his elected representatives. But this latter idea is a fantacy - the masses may elect the politicians, but they hardly influence them. In fact the politicians are more beholden to the various "elites" than the judges.

Just how tenuous is Howard's grasp of the concept of law and an independent judiciary can be found in the failure of his legislation on military courts.

The other odd part of the Howard objection s the ongoing fixation of conservatives with the balance between rights and obligations. He writes;

I also reject a Bill of Rights framework because it elevates rights to the detriment of responsibilities. In a truly liberal and civil society we always need to balance the enjoyment of rights with the acceptance of responsibilities.

I do not understand how our current legislative framework can be claimed to represent this "balance". There are far more pages devoted to our obligations than our rights.

Finally, the most obvious rebuttal to Howard has not been made anywhere. That is, that as a legislated Bill of Rights it will not overturn the power of the legislatuure - it will merely mean that if the legislature wishes to introduce other legislation that would conflict with the rights then the legislature will need to expressly amend the Bill of Rights. That only adds transparency to the actions of our elected representatives, it does not restrict their power to act.



Note: I've often thought Howard delusional, but he exceeded himself when seeking to praise the man after whom the lecture was named, saying "Menzies ... founded the most successful political party Australia has yet seen" adding "Every political party owes it to itself, constantly, to weave a narrative of its ongoing contribution to the life of our nation."

The claim is presumably based on the cumulative years for which either party has provided Australia with its Prime Minister - at today's date 32.3 years for the ALP and 41.9 for the Liberals. But these are such insubstantial measures - for example, the "lead" rested with the ALP in 1996, and could rest again with the ALP with only two more election victories. If we measure State governments, the NSW story is vastly different, as is Queensland.

The ALP's achievements include being the first Social Democratic (or Labor) party to form Government in the world.

In the world of textiles to weave and spin are different things - but I suspect they are not in the field of political rhetoric.